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2021 (9) TMI 917 - AT - Central ExciseUnable to avail and utilized Cenvat Credit - Refund of the Countervailing Duty (CVD) and Special Additional Duty (SAD) - Validity of appeal of Department under the provisions of GST before the Commissioner (appeals) Central Excise - HELD THAT - The apparent and admitted fact remains on record is that the entire customs duty with respect to the inputs imported by the appellant stands fully deposited by the appellant not only alongwith interest but also with the penalty as was directed to be paid while seeking said redemption. These admitted facts are sufficient to hold that the appellant became entitled to avail Cenvat Credit of the CVD/SAD paid by him on the imported inputs in terms of Rule 3 of Cenvat Credit Rules, 2004 (CCR). Apparently, the said Cenvat Credit could not be availed any more due to the erstwhile law i.e. Central Excise Act, 1944 being taken over by New GST Act, 2017. Perusal thereof shows that the Act contains a provision to take care of such unutilized credits of the assessee to be refunded to them in cash. Further, it is also observed that the appeal before Commissioner (Appeals) was filed by the Department not under the erstwhile law but under the GST Act, 2017 - As objected by ld. DR himself that this Tribunal is not competent to deal with the appeals under GST Act. The appeal before Commissioner (Appeals) was not maintainable under GST Act for a refund application which was filed under the erstwhile law. The appeal as such was not maintainable. The order under challenge has wrongly rejected the refund despite an unambiguous provision not only giving entitlement of refund to the appellant but also recognizing for the refund eligible under erstwhile law to have been given in cash under new law. Order accordingly, is hereby set aside appeal resultantly stands allowed. Appeal allowed - decided in favor of appellant.
Issues:
1. Jurisdiction of the Tribunal under the GST Act, 2017 2. Eligibility of the appellant for refund of Countervailing Duty (CVD) and Special Additional Duty (SAD) 3. Interpretation of Section 142 of the GST Act, 2017 for refund claims 4. Maintainability of the appeal filed by the Department under the GST Act Analysis: 1. Jurisdiction of the Tribunal under the GST Act, 2017: The Department objected to the jurisdiction of the Tribunal, arguing that the refund application was filed under the GST Act, 2017, making the Tribunal not the competent authority. However, the appellant clarified that the refund application and appeal were filed under the provisions of the erstwhile law, the Central Excise Act, 1944. The Department's appeal before the Commissioner (Appeals) under the GST Act was deemed not maintainable, and the order passed by the Commissioner (Appeals) was challenged on this ground. 2. Eligibility of the appellant for refund of CVD and SAD: The appellant sought a refund of CVD and SAD paid on imported inputs after fulfilling the conditions of an advance license but failing to meet the export obligation. The appellant paid the requisite customs duty, interest, and penalty as directed by the DGFT for redemption of the export obligation. The Tribunal recognized the appellant's entitlement to avail Cenvat Credit of the CVD/SAD paid on the imported inputs under the Cenvat Credit Rules, 2004. 3. Interpretation of Section 142 of the GST Act, 2017 for refund claims: The Tribunal analyzed Section 142 of the GST Act, 2017, which provides for the refund of unutilized credits to be paid in cash to the assessee. The Tribunal held that the appellant, having paid the duty in full, was entitled to the refund under the new Act, despite the transition from the Central Excise Act, 1944 to the GST Act, 2017. The Commissioner (Appeals) wrongly rejected the refund, as the Tribunal found the denial of entitlement based on the DGFT letter not appropriate. 4. Maintainability of the appeal filed by the Department under the GST Act: The appeal filed by the Department before the Commissioner (Appeals) under the GST Act for a refund application made under the erstwhile law was deemed not maintainable. The Tribunal held that the order rejecting the refund was incorrect, as the appellant was entitled to the refund under the provisions of the new Act, and the appeal was allowed accordingly. In conclusion, the Tribunal set aside the order rejecting the refund, emphasizing the appellant's entitlement to the refund under the new GST Act, 2017, despite the transition from the Central Excise Act, 1944. The Tribunal highlighted the misinterpretation of the law by the Commissioner (Appeals) and allowed the appellant's appeal.
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